Crashing the Parties: A New Report from The Century Foundation on the Nader Campaign and the Debate over Ballot Access

Transcription

1 Ctact: Christy Hicks ~ Phe: (212) ~ hicks@tcf.org FOR IMMEDIATE RELEASE Crashing the Parties: A New Report from The Century Foundati the Nader Campaign and the Debate over Ballot Access New York, September 20 As with so many electi disputes, Florida was ce again the center of attenti over the questi of whether Ralph Nader would get the ballot. But Nader has been and is now engaging in similar battles all across the country, giving natial prominence to a relatively obscure issue in the debate over the democratic process access to the ballot for candidates. As described in Crashing the Parties: The Problem of Ballot Access, a new report from The Century Foundati, Nader s crusade demstrates the complexity of the rules dictating this process, which vary widely state by state. Some democracy reformists criticize current ballot access laws as an unjustifiable and excessive limitati the democratic process and First Amendment rights, especially with respect to states that have what they argue are unduly erous procedures for getting the ballot. Others recognize ballot access procedures as legitimate means of ensuring that ly those who have some chance at a viable candidacy are accommodated by what is a complicated electi administrati system, and that voters are not overwhelmed by vast numbers of unidentifiable candidates. In this report, Tova Andrea Wang, senior program officer and democracy fellow at The Century Foundati, explains what is happening in various states with respect to Nader s pursuit to get the ballot. She provides examples of states, such as New Jersey, where Nader has succeeded in getting the ballot; states where he has completely failed to get the ballot, such as California; states where he is being challenged, such as Pennsylvania; and states in which the Nader campaign is pursuing complex litigati, such as Michigan, Ariza and Texas. In this report, Ms. Wang points out the intricacy of the ballot access system in place today. She explores the array of issues that each state must address in determining what is a fair ballot access law. She ccludes, In the end, we are surely going to be left with a hodge podge of rules throughout the nati, with most states ctinuing to go with the petiti gathering mechanism. There is, therefore, no ideal ballot access law. However, given the issues raised here, it is also clear that some states have rules that are too erous, while a handful of states have rules that are arguably too easy to comply with. The report, Crashing the Parties: The Problem of Ballot Access, is available The Century Foundati Web site at. It is part of The Century Foundati s going work electi reform and the Help America Vote Act. Tova Wang is available for interviews and backgrounders this report and other issues related to electi reform and the 2004 electis. Please ctact Christy Hicks at hicks@tcf.org or (212) for more informati. # # # 9/20/2004 The Century Foundati cducts public policy research and analyses of ecomic, social, and foreign policy issues, including inequality, retirement security, electi reform, media studies, homeland security, and internatial affairs. The foundati produces books, reports, and other publicatis, cvenes task forces and working groups, and operates seven informatial Web sites. With offices in New York City and Washingt, D.C., The Century Foundati is nprofit and npartisan and was founded in 1919 by Edward A. Filene.

2 Ctact: Christy Hicks ~ Phe: (212) ~ hicks@tcf.org FOR IMMEDIATE RELEASE Crashing the Parties: A New Report from The Century Foundati the Nader Campaign and the Debate over Ballot Access New York, September 20 As with so many electi disputes, Florida was ce again the center of attenti over the questi of whether Ralph Nader would get the ballot. But Nader has been and is now engaging in similar battles all across the country, giving natial prominence to a relatively obscure issue in the debate over the democratic process access to the ballot for candidates. As described in Crashing the Parties: The Problem of Ballot Access, a new report from The Century Foundati, Nader s crusade demstrates the complexity of the rules dictating this process, which vary widely state by state. Some democracy reformists criticize current ballot access laws as an unjustifiable and excessive limitati the democratic process and First Amendment rights, especially with respect to states that have what they argue are unduly erous procedures for getting the ballot. Others recognize ballot access procedures as legitimate means of ensuring that ly those who have some chance at a viable candidacy are accommodated by what is a complicated electi administrati system, and that voters are not overwhelmed by vast numbers of unidentifiable candidates. In this report, Tova Andrea Wang, senior program officer and democracy fellow at The Century Foundati, explains what is happening in various states with respect to Nader s pursuit to get the ballot. She provides examples of states, such as New Jersey, where Nader has succeeded in getting the ballot; states where he has completely failed to get the ballot, such as California; states where he is being challenged, such as Pennsylvania; and states in which the Nader campaign is pursuing complex litigati, such as Michigan, Ariza and Texas. In this report, Ms. Wang points out the intricacy of the ballot access system in place today. She explores the array of issues that each state must address in determining what is a fair ballot access law. She ccludes, In the end, we are surely going to be left with a hodge podge of rules throughout the nati, with most states ctinuing to go with the petiti gathering mechanism. There is, therefore, no ideal ballot access law. However, given the issues raised here, it is also clear that some states have rules that are too erous, while a handful of states have rules that are arguably too easy to comply with. The report, Crashing the Parties: The Problem of Ballot Access, is available The Century Foundati Web site at. It is part of The Century Foundati s going work electi reform and the Help America Vote Act. Tova Wang is available for interviews and backgrounders this report and other issues related to electi reform and the 2004 electis. Please ctact Christy Hicks at hicks@tcf.org or (212) for more informati. # # # 9/20/2004 The Century Foundati cducts public policy research and analyses of ecomic, social, and foreign policy issues, including inequality, retirement security, electi reform, media studies, homeland security, and internatial affairs. The foundati produces books, reports, and other publicatis, cvenes task forces and working groups, and operates seven informatial Web sites. With offices in New York City and Washingt, D.C., The Century Foundati is nprofit and npartisan and was founded in 1919 by Edward A. Filene.

3 CRASHING THE PARTIES: THE PROBLEM OF BALLOT ACCESS (UPDATED SEPTEMBER 16, 2004) The latest quixotic bid for the presidency by Ralph Nader raises a relatively obscure issue when it comes to the debate over the democratic process access to the ballot for candidates. Presidential ballot access laws, which have evolved over the past century, dictate the course of acti a would-be candidate must follow in order to place his or her name before the voters Electi Day. The rules dictating this process vary state by state; each state has its own way of attempting to balance two competing but vital democratic values: ensuring the right to participate in an electi versus the need to make the democratic process manageable and ratial. i Some democracy reformists criticize current ballot access laws as an unjustifiable and excessive limitati the democratic process and First Amendment rights, especially with respect to states that have what they argue are unduly erous procedures for getting the ballot. Others recognize them as a legitimate means of ensuring that ly those who have some chance at a viable candidacy are accommodated by what is a complicated electi system (csider the work that must go into the cfigurati of a lg ballot ale), and that voters are not overwhelmed by vast numbers of unidentifiable candidates. Two recent examples highlight the arguments both sides. New York has had notoriously difficult ballot access laws, leading to several lawsuits, most notably the e undertaken by Senator John McCain in Molinari v. Powers, F. Supp. 2d 57 (E.D.N.Y 2000). Under a 1999 electi law, for Republicans in New York, The three delegates for each of the 31 Cgressial districts are chosen through a direct delegate electi. On the ballot, the delegate-candidate s name is placed next to the presidential candidate s name for whom he or she has chosen to commit. In order to be placed the ballot in each district, a presidential candidate must get at least e delegatecandidate in each district to commit to him or her. The delegate-candidate must collect signatures from the lesser of 1,000 or 0.5% of registered Republicans in the delegate s district. In additi, the presidential candidate must obtain 5,000 Republican signatures statewide. ii The law further regulated down to the last detail how those signatures were to be collected and what mistakes would cause the signature to be invalidated. For example, volunteers may ly gather signatures in their own districts during a 37 day period that falls during the winter holiday seas and includes weekends.... Also, a pers signing a petiti cannot sign more than e. The csequence of doing so is that the multiple signatures are invalidated. iii The Century Foundati cducts public policy research and analyses of ecomic, social, and foreign policy issues, including inequality, retirement security, electi reform, media studies, homeland security, and internatial affairs. The foundati produces books, reports, and other publicatis, cvenes task forces, and working groups and operates eight informatial Web sites. With offices in New York City and Washingt, D.C., The Century Foundati is nprofit and npartisan and was founded in 1919 by Edward A. Filene. HEADQUARTERS: 41 EAST 70TH STREET NEW YORK, NY (FA) INFO TCF.ORG DC OFFICE: 1333 H STREET, NW 10 TH FLOOR WASHINGTON, D.C (FA) INFO TCF.ORG

4 Molinari held two specific aspects of the New York law uncstitutial. Under the law, signatures were thrown out when the signer mistakenly gave his mailing address village instead of the larger town. For example, if a signer named Brooklyn, instead of New York City, as his town of residence the signature would be invalid. This town/city trap was held uncstitutial... in Molinari v. Powers. In additi, signatures were thrown out if witnessed by party volunteers who did not live within the district for which the petiti was submitted, unless the witness was a notary public or commissier of deeds. This provisi was also deemed uncstitutial by Molinari. iv The 1999 law had basically been cstructed to guarantee that no candidate could get the Republican ballot without the full support of the state Republican apparatus. It ensured that a candidate would need vast resources to mount a successful signature collecti operati. In the McCain case, Molinari, the parties entered into a stipulati allowing McCain the ballot, but the federal judge stated in a memorandum and order that the Republican scheme as a whole was uncstitutial in this instance. In his order, Judge Korman said I accepted the Stipulati ly after independently ccluding that the scheme, both in its totality and by virtue of two of its individual but related elements [referred to above], places an undue burden the right to vote under the First Amendment. v On the other end of the scale was the gubernatorial recall electi in California in To be a candidate, e needed ly to collect 65 signatures and to pay a filing fee of $3,500. As a result, 247 people attempted to get the ballot, and 135 succeeded, creating a circus-like atmosphere in an important electi. The possibility of voter cfusi was serious. During and in the aftermath of the electi, press accounts such as this were comm: With 135 people running for California governor, making it to the top 10 vote getters when you are neither famous nor well financed is nothing short of shocking. And so George B. Schwartzman, 57, an earnest, utterly obscure businessman from Carlsbad, in Southern California, basked in the glory Wednesday of placing ninth in the recall electi, with 10,949 votes.... Wait a minute. Could some of those 10,949 votes have been meant for Arnold Schwarzenegger and not George Schwartzman? There was no way to be sure. But Mr. Schwartzman vehemently denied the possibility that his voters had intended to vote for the new governor. As evidence, he chricled a breathless campaign sweep across the state, where he targeted tailgate parties, cstantly wore his Schwartzman for Governor T-shirt and spent about $6,500, or 60 cents per vote.... While Mr. Schwartzman placed ninth, he did not beat the former child actor Gary Coleman, who came in eighth, with 12,690 votes, and he barely edged out Mary Carey, a pornography actress, who got 10,114 votes. Ms. Carey said Wednesday that she was delighted and surprised she placed 10th, but was irked that Mr. Coleman had trumped her. vi While laws and regulatis do vary widely, all states require that a candidate collect petitis with a certain number of signatures from registered voters, and some states require payment of a small 2

5 filing fee (see Appendix I for an example). As the New York law demstrated, the devil is in the details of this signature collecti: to ensure against fraud, the signatures must be collected in particular ways, sometimes collected by particular people, and signed ly by certain voters. For example, Michigan electi law says, At the time of circulati, the circulator of a petiti shall be a registered elector of this state. At the time of executing the certificate of circulator, the circulator shall be registered in the city or township indicated in the certificate of circulator the petiti.... Except as provided in secti 544d, a petiti sheet shall not be circulated in more than 1 city or township and each signer of a petiti sheet shall be a registered elector of the city or township indicated in the heading of the petiti sheet. The invalidity of 1 or more signatures a petiti does not affect the validity of the remainder of the signatures the petiti. vii These types of instructis allow electi administrators to check that the signatures are legitimate. Every year there are numerous instances in which signature collectors have forged great numbers of petitis. viii The number of signatures a candidate must collect is different in states throughout the country: in 2004 the number ranges from 275 signatures in Tennessee to over 100,000 in North Carolina. In two states Louisiana and Colorado no signature collecti is required at all, just a filing fee. Another sticking point is that sometimes independent and third party candidates are subject to different signature requirements than Democratic and Republican candidates. Supporters of these rules say they are justifiable because major party candidates are ly allowed to collect signatures from voters registered with their party, while an independent or third party candidate can collect signatures from any registered voter. Finally, every state has a different deadline for submitting signatures. This year, that ranges from a deadline of May 24 in Texas to September 16 in Vermt. The outcomes of a number of Supreme Court and other court cases the cstitutiality of these requirements deadlines, the number of signatures that must be collected, what makes a signature invalid, and requiring different number of signatures for different types of candidates have been incsistent. As a result, there is no bright line rule as to what is fair and reasable to require of aspiring candidates (see Appendix II). This brings us to the Ralph Nader campaign for President in Nader appeared the ballot in most states in 2000 by virtue of the endorsement of the Green Party. This year, without the Party s support, Nader has been forced to wage a state-by-state battle (see Appendix III). Although the Reform Party endorsed him, that has ly secured him a place the ballot in Colorado, Mississippi, Florida, and possibly South Carolina. ix A review the Nader campaign s trials and tribulatis in some key states demstrate the complexity of this area of our democracy, and also underscore the necessity for strict but fair ballot access laws. NADER SUCCESSFULLY EARNS HIS WAY ONTO THE BALLOT New Jersey holds the distincti of being the easiest ballot to get in the nati. Nader needed merely 800 signatures by July 26 (see Appendix III). Nader s candidacy could make a difference here: He earned 94,554 votes, about 3 percent, in Al Gore w the state by 16 percentage 3

6 points. However, a recent poll projects Nader getting 7 percent of the state s vote, with Kerry 6 points ahead of Bush. x Similarly, Washingt State has a very minimal threshold for making it to that state s presidential ballot. One needs ly collect 1,000 signatures. After Nader submitted 1,983 signatures, officials checked a sample of 1,200 and verified 1,008, putting him the ballot. xi In 2000, the vote was Gore 50 percent, Bush 45 percent, and Nader 4 percent. This year, polls show Kerry at 48 percent, Bush at 43 percent and Nader at 2 percent. xii NADER FAILS TO MAKE THE BALLOT Nader has tried and failed to get the ballot in a number of states. For example, in Georgia he needed 37,153 valid signatures by July 13 and was unable to do so. In Indiana, he needed 29,553 by July 1. In North Carolina, he needed 100,532 signatures by July 6. In Oklahoma he needed 37,027 by July 15. In Virginia, September 7 electis officials ruled he did not have enough signatures from registered voters from the state to win a place the ballot there. Nader and his supporters were also unsuccessful in California. According to Carla Marinucci of the San Fransisco Chricle, Nader was ly able to collect about half of the 153,035 signatures necessary to get the California ballot. As a result, the campaign is now trying to cvince the Green Party in the state to drop its current nominee and substitute Nader. They are trying to cvene an emergency party meeting to vote whether to put Nader the Green ticket. xiii Nader made a bid for the Green Party nominati at its June cventi, but in a major blow to his candidacy, the natial party delegates instead nominated David Cobb, a lawyer. Now Nader and his vice-presidential candidate Peter Miguel Camejo (a Californian) are trying to get the party to change course and replace Cobb with Nader. The Green Party is very divided, and there s a crisis, said Camejo, who w the Green Party s n-binding California primary vote in March. Any state Green Party can tell the natial party, We d t accept your cventi and we re putting Nader- Camejo the ballot. xiv On August 12, the Green Party refused to hold the necessary special nominating cventi. CHALLENGES TO NADER S PETITIONS Pennsylvania Pennsylvania has become the most heated battle site of the Nader campaign. Nader was required to submit 25,697 signatures by August 2. Pennsylvania is csidered a key battleground state, making Nader s campaign particularly troubling to Democrats. In 2000, the Green Party ticket, Nader drew 2.1 percent of the state s vote, compared with Bush s 46.4 percent and Gore s 50.6 percent. Current polls for a three-way ctestpredict Kerry 48 percent, Bush 43 percent, and Nader 2 percent, while without Nader, Kerry leads 51 percent to 43 percent (with 6 percent undecided). xv On August 2, Nader filed about 45,000 signatures. Democratic volunteers immediately began to scrutinize them in preparati for challenging them. xvi 4

7 Subsequently, Democrats alleged that, Up to 90 percent of the nominating petitis circulated in Philadelphia by Ralph Nader s presidential campaign were marred by forgeries and other improprieties, and they filed a legal challenge in Commwealth Court to keep Nader off the ballot. Volunteers displayed numerous forms that the group said appeared to be improper, including some filled out entirely in the same handwriting and others featuring repeated signatures of the same name. Democrats said the filing would include evidence that Nader s running mate, Camejo, was registered to vote in California as a member of the Green Party. Under state law, independent candidates may not have been members of another party during the electi year. As part of the effort to get the ballot, Camejo submitted an affidavit saying he was not a member of a party. xvii Press reports said that Amg the complaints about Nader s petitis, according to the suit, are forged signatures, missing addresses, unreadable names or addresses, incomplete informati, missing dates of signatures and signers not being a registered voter. The suit also claims the Nader petitis show a wide ranging and extensive pattern of false and forged entries, entries obtained through [the] decepti of signers and whole pages of outright forged signatures.... Democrats from the state House of Representatives said they think there are at most ly 10,000 valid signatures the petitis. xviii A nine-member Commwealth Court, composed of five Democrats and four Republicans, will now determine the validity of the signatures. xix On August 30, the court panel ruled Nader was not entitled to a ballot spot. It said Nader violated state law by trying to run as an independent here while filing to run the Reform Party ticket in Michigan.... The Pennsylvania court decisi made moot questis about whether Nader had gathered enough legitimate signatures to get the ballot. Instead, the court applied state electi law and decided that e cannot simultaneously seek to be an independent political candidate [in Pennsylvania]... while accepting the nominati of a political party in another state, said Gregory Harvey, e of the lawyers trying to keep Nader off the ballot. Nader attorney Samuel C. Strett called the ruling a violati of the right to free speech and said the court erred in its applicati of the law. xx Nader plans to appeal. Nevada Under Nevada law, Nader needed to collect just 5,019 signatures by July 9 a relatively low number. Nader s success could have major electoral implicatis in this state. In 2000, the Nevada electi results were Bush 50 percent, Gore 46 percent, and Nader 2 percent (Nader was running as the Green Party candidate). Current polls show Bush 46 percent, Kerry 43 percent, and Nader 4 percent. xxi As in many other states, Republicans were instrumental in Nader s collecti effort. According to press reports, Republican political csultant Steve Wark has said he helped to raise mey for Nader to qualify, and did so solely to help President Bush s reelecti campaign. Wark also is working the U.S. Senate bid of Richard Ziser and the reelecti campaign of State Sen. Ray Raws. His mother-in-law is Earlene Forsythe, Nevada Republican Party chairwoman. xxii Nader s bid in Nevada did not go unchallenged, however. On August 24, the State Democratic Party and three voters filed a lawsuit charging signatures so tainted with misrepresentatis, falsity, forgery, miscduct and deceit as to taint its integrity in its entirety. Voters alleged they were asked to sign petitis to repeal taxes when they were really Nader petitis. Fifty charged they signed under false pretenses. xxiii 5

8 The Court ruled that Nader should stay the ballot, however. Judge Bill Maddox said that even after disqualifying more than 3,000 signatures Nader s ballot petiti, about 7,000 remained. The Nader propents needed ly about 5,000 signatures to qualify... Nader would have been disqualified if [the judge] dropped the names of about 3,500 people whose signatures were witnessed by name-gatherers from out of state who listed hotels where they were staying rather than their actual residences. xxiv NADER S LITIGATION Michigan Running neck and neck with Pennsylvania for the most ctentious Nader battle site is Michigan. In that state, Nader needed to get 31,776 signatures by July 15. In the 2000 vote, it was Gore 51 percent, Bush 46 percent, and Nader 2 percent. Current polls show Kerry 47 percent, Bush 42 percent, and Nader 2 percent. xxv Nader filed 50,000 signatures. However, the Michigan Republican Party submitted 43,000 of them, according to the Michigan GOP itself, creating a ctroversy that is detailed below. There are now two actis taking place in Michigan, e initiated by Nader and the other by Michigan Democrats. In May, the natial Reform Party endorsed Nader, giving him potential access to the ballot in seven states, including Michigan. In that state, Nader received the nominati of a group claiming to be the Reform Party, but the Secretary of State refused to recognize the endorsement because there is a dispute over whether that group is the legitimate Reform Party in Michigan. A facti of the Reform Party in Michigan has refused to accept the natial party s endorsement of Nader. On July 27, Nader filed a lawsuit in federal court in Detroit claiming that by denying his bid to be the ballot as the Reform Party candidate, the state violated his First Amendment rights. In the meantime, July 22 the Michigan Democratic Party challenged his candidacy as an independent candidate the ballot. It also filed a complaint with the FEC ccerning illegal and excessive ctributis against Nader and the Michigan Republican Party. The first basis for the challenge is that under Michigan law, ly petitis filed by a candidate may be csidered by the Board, and therefore the 45,000 MIGOP [Michigan Republican Party] signatures cannot be used to put Nader the ballot. The challenge is also based 26,000 disputed signatures. A review of the petitis found numerous instances of fraud committed by MIGOP staffers, who gathered nearly 20,000 signatures. xxvi The Party alleges the following violatis: petitis were signed with fraudulent signatures; MIGOP Executive Director Greg McNeilly was a circulator of a petiti without a county heading; petitis were filed with thousands of signatures from unregistered voters; petitis were circulated by people who were not registered voters; the signatures turned in by the MIGOP staff were altered and doctored with dates, places, and zip codes being changed; 6

9 individual MIGOP staffers signed petitis as circulators, which they clearly did not circulate;and MIGOP staffers claimed to have collected signatures from up to eighteen different counties in e day from around the state including the Upper Peninsula. xxvii At the end of August, the Board of State Canvassers deadlocked 2-2 whether the 50,000 votes turned in to get Nader the Nov. 2 ballot should be certified. Republicans voted yes, while Democrats said no. xxviii The Michigan Democratic Party also filed a complaint with the Federal Electi Commissi alleging the Republican Party and Nader for violating campaign finance laws. The Republican Party cannot spend more than $5,000 in coordinati with the Nader campaign in an effort to get him the ballot. Even if it is proven that it did so, it is nevertheless unclear whether this would affect the legitimacy of the signatures themselves, or ly be a violati of campaign finance laws. As Professor of Electi Law Edward Foley has written, The real questi then is whether signatures may be disqualified if they were collected using unlawful campaign ctributis.... On the e hand, if the signatures are themselves valid, then why should they be stricken, just because they were collected using improper campaign funds? It s the voters rights that should be paramount in the implementati of any ballot access law, and if enough legitimate voters want Nader the ballot (for whatever reas), then he should be there. On the other hand, signature-collecti efforts must follow certain procedures, which exist for a reas. Even if valid signatures are submitted after a deadline, they are disqualified, because the deadline enforces procedural fairness. Likewise, if Nader cannot collect enough signatures except by resorting to improper means, then perhaps these tainted signatures should not count toward the number necessary to warrant a place the ballot. xxix Regarding the suit initiated by Nader, September 1 a judge ruled him off the ballot. He said that the Secretary of State could not be expected to decide which of two warring Reform Party factis in Michigan was the right e The judge further stated that Nader also weakened his case when he did not reject Republican-collected signatures that could put him the ballot as an independent candidate. The plaintiff was aware of the statute that explains how to get off the ballot as an independent, Friedman said. He didn t withdraw as an independent candidate by the deadline. The judge said he might recsider his decisi, depending how the Michigan Court of Appeals ruled after hearing arguments Wednesday whether Nader should be the ballot as an independent. xxx In that case, the e brought by Democrats, there was a Court of Appeals hearing; no decisi has yet been rendered. Texas Texas was not a ctested state in 2000 and is not expected to be this year. The state is netheless interesting because Nader is challenging the ballot access law itself there. In Texas, in order to run as an independent candidate, Nader needed to collect 64,077 signatures (1 percent of votes cast in the last presidential electi) by May 10 from registered voters who did not vote in the Democratic or Republican primaries. On July 22, Nader argued in a federal court hearing that the state s ballot access requirements for independent candidates were uncstitutial 7

10 because they are stricter than those for third-party candidates. Third-party candidates need to get 45,540 signatures. xxxi Nader submitted his signatures two weeks late in Texas, but evidently even if Nader had been time it is unlikely he would have qualified for the ballot as an independent candidate because of the number of invalid signatures he collected. However, he might have qualified if he had been trying to be a third-party candidate. The suit, Nader et al. v. Cnor, filed in federal court in Austin, notes that the campaign has collected in excess of 50,000 signatures and urges the Court to find the statute uncstitutial and discriminatory in three respects. Texas has the earliest due date of any state, May 10. Forty-six states have deadlines of July, August, September, or later. The early due date is not needed to regulate ballot access and therefore is uncstitutial. It is uncstitutial for Texas to require Independent candidates to collect 64,076 signatures, nearly 20,000 more valid signatures than Third Party candidates, which must collect 45,540. It is uncstitutial for Texas to require Independent candidates to collect signatures in 60 days, two weeks less time than Third Party candidates, which have 75 days. xxxii On the other hand, The Texas ballot requirements for independent candidates have been in place for 20 years. Secretary of State Geoff Cnor has noted that Reform Party candidates Ross Perot in 1992 and 1996 and Pat Buchanan in 2000 managed to get the Texas ballot as independents, an argument [Deputy Attorney General] Burbach noted again in court. He said that if 100 Nader petitiers had gathered just 13 signatures a day, they would have passed their goal. xxxiii On September 2, a federal judge upheld Texas ballot access law and rejected Nader s attempt to get his name the ballot. xxxiv Illinois Litigati is also underway in the state of Illinois, where Nader needed 25,000 signatures by June 21 (established party candidates need 5,000 signatures). In 2000, Gore beat Bush by a substantial margin, and polls show Kerry leading Bush this year. Nader filed about 32,000 signatures and the Democrats filed objectis to about 19,000 of them a week later. Expecting that Illinois officials would throw him off the ballot for insufficient numbers of valid signatures (as indeed they later did), Nader filed a federal lawsuit challenging the state s electi laws as uncstitutial. Most of the Democrats objectis relate to claims that the signer was not registered to vote at the same address as shown the petiti sheet. Nader forces argue that such a requirement amounts to an overly narrow definiti of a qualified voter and violates Nader s First Amendment rights. xxxv According to the Nader campaign, For the purposes of a presidential campaign... it does not matter where in Illinois a pers lives, merely that the pers lives in Illinois and is validly registered to vote in Illinois. xxxvi Moreover, the suit also assails the state s deadline for signatures the third-earliest of any state and the 25,000-signature requirement as uncstitutial infringements The suit seeks to have the 8

11 court declare pertinent sectis of the state electi code uncstitutial and enter an injuncti prohibiting Nader from being removed from the November presidential ballot. xxxvii On August 23, 2004, a federal court in Illinois denied Nader s challenge. xxxviii Ariza In the battleground state of Ariza, Nader needed to collect 14,694 signatures by June 9. Although in 2000, it was Bush 51 percent, Gore 45 percent, and Nader 3 percent, current polls show Bush leading Kerry ly 48 percent to 45 percent. For weeks it was thought that Nader was finished in Ariza. Although he submitted more signatures than necessary, Democrats challenged them and Nader abanded the effort, acknowledging deficiencies in the signature collecti. After Nader submitted his signatures, [T]wo Democratic voters, backed by the state party, questied the validity of Nader s petitis and other documents. The Democrats said more than 70 percent of the signatures were invalid. As a Maricopa County Superior Court judge prepared to hear arguments, Nader campaign attorney Richard K. Mahrle cceded there were technical errors in the petiti and said Nader would not ctest the suit. Judge Mark Armstrg ordered that Nader be kept off the state ballot. Nader spokesman Kevin Zeese said a review by the secretary of state s office found that the campaign fell short of the required number of valid signatures. He said the campaign does not have the resources to fight an aggressive legal challenge and accused Democrats of harassment.... In their lawsuit, the Democrats alleged Nader s petitis were signed by thousands of unregistered voters, that some of those collecting signatures were cvicted fels and that other collectors did not meet residency requirements. xxxix However, in an about-face, August 16, Nader filed suit in federal court challenging the cstitutiality of the state s ballot access laws. His arguments are similar to the es he is making in Texas. The lawsuit, filed in U.S. District Court in Phoenix, ctends it is unfair to require that nominating petitis be filed nearly five mths before the general electi, and that signature gatherers be Ariza residents who are eligible to vote. xl The Nader campaign argues the July 9 deadline is unfair because it does not apply to the major parties. Instead, they are given until after their natial cventis to tell the state who are their nominees. Nader s lawyers say the early deadline means that there is no opportunity for an independent campaign and that some federal courts have ccluded there is no legitimate state interest in keeping people who are not residents from circulating petitis. xli Nader asked the court to either order that Nader s name be placed the ballot or that the deadline for collecting signatures be extended to allow him to qualify. On September 10, a judge rejected the request. xlii 9

12 Oreg Oreg is also a state that is very much in play. Current polls show Bush at 46 percent, Kerry at 45 percent and Nader at 1 percent. Nader was the difference-maker in Gore w the state by just a few thousand votes; Nader got 77,357 votes. In Oreg, Nader failed to get the ballot three times. On two separate occasis, he failed to get 1,000 supporters to come to a cventi for independent voters. Republicans and Democrats traded charges accusing each other of packing the events in an effort to sway the outcome. xliii Then Nader tried the other method Oreg law allows: attempting to get 15,306 signatures by August 24. Republican allies pitched in to help. Nader turned in 18,186 signatures, but they were immediately challenged. The Oreg Secretary of State said that Nader has enough valid signatures, but was still ineligible for the ballot because his petiti pages were supposed to be numbered sequentially. They were not in order in e county that had 3,000 signatures, taking him below the minimum requirement. xliv The Nader campaign pledged to sue. xlv On September 9, a county judge ruled that the Secretary of State exceeded his authority when he disqualified those signatures. A circuit court judge ordered state officials to include Nader the ballot as an independent candidate. xlvi State officials appealed September 14, arguing the secretary of state must have latitude to interpret rules to deal with potential fraud. xlvii WHERE SHOULD THE BALANCE LIE? There are many factors to csider when trying to cfigure a fair presidential ballot access law. Given the complexity of having to navigate 50 completely different ballot access laws, at first blush it might be thought that there ought to be e uniform rule for the whole country. However, this is probably impossible as the Cstituti gives states a good deal of authority over the manner in which they cduct presidential electis, including granting them the power to choose how they appoint electors. xlviii Moreover, even if it were cstitutially permissible, it does not make much sense when given further thought. Each state is so different geographically and demographically that e rule could not be fairly applied across the board. For example, if a candidate were required to obtain a number of signatures based a percentage of the state populati, this would be a much more difficult task in a highly populated state than a sparse e. On the other hand, if there were a requirement of a flat number of signatures in each state, this would be more difficult in a rural, sparsely populated state than a more urbanized populous state. The political dynamics, such as strength of the party organizatis in the state, also disfavor a e size fits all approach. Therefore, if it must be accepted that states will have different rules for allowing candidates the ballot, there are several issues that each state must address. In providing answers to these questis, states and candidates can move toward an optimally fair yet efficient system. Deadlines As has been noted, each state has a different date by which a candidate must submit his or her petitis. How is this deadline determined? It should not be so early as to make it impossible for a candidate to comply with, but not so late as to make it impossible for electi administrators to set up the electi properly. 10

13 Candidates naturally want to have as much time as possible to collect signatures, clearly a big undertaking. However, it must also be understood that government and electis officials must perform a great many tasks ce a candidate has submitted his or her applicati. Electis administrators and government officials must have sufficient time to review and determine the validity of the signatures submitted; hear challenges to those signatures; and, if there is such a challenge, to allow for potential judicial review by the courts. Then, if the candidate is successful in securing a place the ballot, electis officials must create and print clear and correct ballots (or program computers to do so); mail absentee ballots; mail absentee ballots to military voters thirty days before the electi; and create and publish appropriate voter-educati materials. The operative questi then is this: What is the last date by which a state government needs to know who will be the ballot to complete its administrative duties? Given its resources and experience, each state must make the appropriate determinati. If they were to do so, deadlines would certainly not be natially uniform, but they would likely be closer together. A sub-issue is should there be different deadlines for Republicans, Democrats, third-party candidates, and independents? While it might seem as though the rules should be the same, the matter is more complex than that. Republicans and Democrats as well as some third parties must file for primaries, which take place much earlier than the signature collecti deadlines. Signature Collecti The most obvious questi is, what s the right number of signatures to require? Should it be based a percentage of the overall voting populati of the state? If so, what should that percentage be? Alternatively, should it just be a flat, statewide minimum number? If so, what number? A percentage has the virtue of reflecting populati shifts, while a flat number would mean candidates would know well in advance what will be required of them. As noted, this is a matter each state must assess, but it should reflect in a reasable manner the registered populati of the state (since signers are required to be registered voters). For example, a particular percentage in e state means something very different in another state: for example, Mtana requires five percent of the number of voters for the last gubernatorial candidate in the state this year this means less than 1,500 signatures. At the same time, California requires e percent of voters now over 150,000. For party candidates, the number may need to reflect the populati registered with that party since the rules often require signers to be registered with the party. In additi to differing numbers, different states obviously have a wide range of requirements regarding who can sign a petiti, where they need to be from, and how they complete the informati requested. For example, ballot access laws frequently have distributial requirements that is, they require that a candidate collect a certain number of signatures from a certain number of jurisdictis. The theory is that a candidate ought to be able to show support from throughout the state. However, in a practical sense this may be more erous than it is worth. First, you may cfrt situatis like that now occurring in Virginia. Initially, the Board of Electis informed the Nader workers there that they had not met regulatis that call for petitis to be grouped strictly by cgressial district and then by cities or counties within each of the districts by the no deadline and denied him a place the ballot. xlix In Virginia, candidates must collect 10,000 11

14 signatures with at least 400 from each cgressial district. So even if Nader s signatures are all valid, he may be disqualified because the petitis are not in the proper cgressial order. This seems too picayune and remote from the purposes of ballot access laws to make sense. In additi, is the motive behind signature requirements a demand that a candidate demstrate he or she has support in every corner of the state or just that the candidacy is viable enough to win the state? If it is to show the race is winnable, distributial requirements again are nsensical. For example, a candidate could easily win New York State by simply winning much of New York City. If a state deems it important to show support in more than e sector of the state, it seems it should at least keep the number of places in which a candidate must get signatures, and the number of signatures from each place, at a reasable level. Another questi is what requirements should be applied to the ctent of the signature and additial informati required? What errors should be disqualifying? For example, what if the address does not match the voting address? What if a signer puts down a married name when he or she registered with a maiden name? The logic behind having rules about the ctent of signatures is that it is necessary to prevent fraud. Administrators and other candidates in the race must have a means for assessing whether the signature is legitimate or fraudulent (that is, a fabricati by the signature collector). It is a problem that, as noted, comes up with some regularity. If somee reviewing the signature has no way of verifying that the signer is a real pers and/or a registered voter, that signature must be thrown out. This does not mean that irrelevant details should be disqualifying for example, the inclusi of a middle initial does not affect the ability to match a signature with a name a voting roll. Moreover, putting down the wrg town or village should not be disqualifying, since voter rolls are kept at the county level. Giving the right county should be sufficient. In any case, the Help America Vote Act s new requirement that every state cstruct and use a statewide voter registrati database that is ctinuously updated with informati from the Department of Motor Vehicles and other agencies has the potential to go a lg way to simplifying this. Once such a database is fully operatial and all registrati informati is kept at the state rather than the local level, the process of matching signatures a petiti with a list of registered voters will become much easier. Nader and others have also objected to the requirement that signers and collectors of signatures be registered voters in that jurisdicti. Again, however, this goes to the issue of fraud. This is the means by which boards of electi are able to verify the identity of the people signing the petitis. Finally, there is the questi of whether there ought to be some alternative to petitiing to get the ballot. For example, should somee be able to get a place the ballot simply through a large filing fee? After all, it might be argued, we often judge candidates viability by the amount of mey they are able to raise. Why not have the same standard for getting the ballot? By the same token, what if a would-be candidate is able to demstrate widespread support through a legitimate poll? Legislators in New York at e time entertained the noti of allowing a potential candidate to post a bd with the state in order to get the ballot, which would have to be repaid if the candidate did not in fact receive a certain number of votes. In the end, we are surely going to be left with a hodge podge of rules throughout the nati, with most states ctinuing to go with the petiti gathering mechanism. There is, therefore, no ideal 12

15 ballot access law. However, given the issues raised here, it is also clear that some states have rules that are too erous, while a handful of states have rules that are arguably too easy to comply with. Many democracy advocates argue for increasing opportunities for third-party and independent candidates to run for office, and cdemn ballot access laws as a rule. However, advocates need to recognize that some rules, though they must be reasable rules, are necessary for the system to functi. Instead, therefore, perhaps the way to sensible reform lies in negotiating fairer but not obstacle-free paths to access a state-by-state basis. 13

16 APPENDI ECERPT WHAT MUST INDEPENDENT PRESIDENTIAL CANDIDATES DO TO APPEAR ON THE BALLOT IN OHIO? Edward B. Foley, Director, Electi Moritz Amber Lea Gosnell, 2L Student, Moritz College of Law Ohio procedure for getting the ballot: In order for a candidate to earn the right to appear the general electi ballot in November the candidate must meet the requirements outlined in the Ohio Revised Code. Perss desiring to become independent presidential and vice presidential candidates must submit a statement of candidacy, a joint nominating petiti, and a slate of presidential electors by four p.m. of the seventy-fifth day before the day of the general electi. For the 2004 electi, August 19 is the seventy-fifth day before the electi. First, the U.S. Cstituti requires that presidential and vice presidential candidates file jointly. Secdly, the statement of candidacy is a perfunctory form that candidates must complete and sign, which includes descriptive informati such as voting residences, nominatis sought, and electi date. Third and most significant, the nominating petiti must be signed by at least 5,000 registered voters, but may not include more than 15,000 signatures, and the signatures must be separated by county, where each paper ctains signatures from ly e county. The petiti requires: (1) signatures by qualified registered voters (regardless of political party affiliati); (2) addresses of the voters that correspd with their addresses the voter registrati cards; (3) genuine signatures; (4) legible signatures; (5) signatures in ink; and (6) the filing date. The Ohio Revised Code and Ohio case law permit any candidate who seeks placement the ballot without the designati of a specific political party to request, at the time of filing the nominating petiti, to be designated as a nparty candidate, other-party candidate, independent, or without any designati. (If a candidate requests the other-party candidate designati, this exact term will appear beneath the candidate s name the ballot with no identificati of the other party to which the candidate refers because the party itself is not filing a nominating petiti behalf of the candidate, a procedure that is available ly when the party is officially recognized under Ohio Law.) A candidate who does not request a particular designati will be listed the ballot with nothing written below the name. Lastly, candidates must file a list of names of 20 electors who will represent them in the Electoral College, should the candidates win the general electi. If independent candidates collect sufficient signatures and submit the petiti, the statement of candidacy, and the slate of presidential electors by the deadline, the candidates are automatically placed the general electi ballot. Once the nominating petiti is filed with the Secretary of State and the candidate has properly complied with the requirements of separating the signatures by county, the Secretary must give the petitis to the respective county board for verificati. The county board must have examined and determined the sufficiency of the signatures by the sixty-eighth day before the general electi, which in the coming general electi is August 26, 2004 (ly seven days after the filing deadline). All matters affecting the validity or invalidity of the nominating petitis are determined by the county electi board with whom such petiti papers were filed by the Secretary of State. If a candidate objects to a disqualificati by a board, such as if a board disqualifies enough signatures 14